AS TO THE ADMISSIBILITY OF
Application No. 19315/92
by Rudolf BACHMANN, Michael HOFREITER
and Beatrix GULYN
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 6 September 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 23 December 1991
by Rudolf BACHMANN, Michael HOFREITER and Beatrix GULYN against Austria
and registered on 8 January 1992 under file No. 19315/92;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
5 July 1994 and the observations in reply submitted by the
applicant on 24 August 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are Austrian citizens, all residents of Vienna.
They are the parents of children attending two private schools in
Vienna. Before the Commission the applicants are represented by
Dr. Thomas Höhne, a lawyer practising in Vienna.
The particular circumstances of the case
The applicants are members of the associations "Gemeinsam Lernen"
and "Schulkollektiv Wien". These associations run two private schools,
the "Schülerschule" and the "Volksschule", which may be considered an
alternative to the traditional Austrian school system. Both schools
have obtained the necessary licences from the Ministry of Education,
Arts and Sport (Bundesministerium für Unterricht, Kunst und Sport) in
accordance with the relevant domestic legislation pertaining to the
running of private schools in Austria.
The association "Gemeinsam Lernen" submitted a request to the
Ministry of Education, Arts and Sport requesting State subsidies for
its school in accordance with Section 21 of the Private Schools Act
1962 as amended (Privatschulgesetz "the 1962 Act"). The request was
rejected on 26 June 1990 as the necessary requirements were not, in the
Ministry's opinion, fulfilled. The association subsequently lodged a
complaint with the Constitutional Court (Verfassungsgerichtshof)
alleging a violation of Article 14 of the Convention referring to the
different possibilities of obtaining subsidies for private schools
depending on whether it concerned schools established by churches or
other recognised religious societies, or schools established by other
private associations or societies.
On 24 September 1990 the Constitutional Court decided not to
entertain the application in so far as it concerned constitutional
queries since, in view of its case-law as well as that of the European
Commission and Court of Human Rights, it did not have sufficient
prospects of success. The Court noted that the case did not fall
outside the Administrative Court's (Verwaltungsgerichtshof)
jurisdiction.
Subsequently, the association brought its complaint before the
Administrative Court relying in substance on the same arguments as in
the Constitutional Court. On 20 September 1993 the Administrative Court
dismissed the case.
An application for subsidies made by the association
"Schulkollektiv Wien" was also unsuccessful.
In the meantime the applicants had submitted an application
(Antrag) to the Constitutional Court in which they requested the Court
to repeal Sections 17 and 21 of the 1962 Act as being unconstitutional.
The applicants maintained in particular that the provisions were
of a discriminatory character in that they disclosed an unjustified
difference in subsidies available to private schools run by religious
institutions on the one hand, and other private schools on the other
hand.
On 12 June 1991 the Constitutional Court rejected the applicants'
application. It found that the provisions in question regulated the
legal position as regards private school subsidies between the State
and the schools in question. In the present case the issue of
subsidies was a matter between the State and the two associations which
ran the schools, whereas neither the individual members of the
associations nor the parents of children attending the schools could
be considered to be directly affected.
Relevant domestic law
Section 11 of the Private Schools Act 1962 as amended, in
particular in 1972, (Privatschulgesetz, "the 1962 Act") provides that
a school may only use the name of certain types of school with the
consent of the appropriate education authority. The conditions for
such consent are that the school must have substantially similar
methods and educational content as the equivalent State schools, that
teachers are properly qualified, and that it is very likely that the
school will continue for some years. The latter condition is assumed
by operation of law in the case of church schools.
Section 14 of the 1962 Act divides private schools into two
categories: schools which fall under Section 11 ("Section 11 schools"),
and schools which do not. Section 11 schools are "recognised" (es wird
das Öffentlichkeitsrecht verliehen) if they offer instruction
appropriate to the Austrian school system, and if their teaching is as
successful as that at an equivalent State school. Non-Section 11
schools are recognised if, in addition, their structures, syllabuses
and equipment, and the qualifications of their teachers, comply with
certain requirements, and if the school has shown that its teaching is
successful. The criteria of Section 14 are deemed to have been met by
certain bodies.
Further provisions of the 1962 Act read, so far as relevant, as
follows.
(translation)
Section 17
"(1) Recognised churches and religious societies shall be
granted subsidies for staff expenditure for religious private
schools which have been recognised as public schools in
accordance with the following provisions.
(2) Religious private schools are schools which are maintained
by recognised churches and religious societies ... ".
Section 21
"(1) The State may grant subsidies, in accordance with the
Federal Budget Act and subject to means, to private schools which
are recognised as public schools but which do not fall under
Section 17 if:
a) the school corresponds to a need of the community;
b) the school does not operate with the intention of drawing
financial benefit;
c) entry conditions for pupils are the same as those applied
for public State schools;
d) the number of pupils per class does not fall below the
average number of pupils per class of a public State school
of the same type and in the same area.
(2) In the case of private primary and secondary schools, a
need within the meaning of Section 21 (1) (a) does not exist if
it would lead to the lowering of the organisational capacity of
a public State primary or secondary school in the catchment area
of the private school.
(3) Subsidies for the schools referred to at Section 21 (1)
shall be granted in accordance with Section 19 (1). Before
seconding a teacher as a subsidy in kind, the governing body of
the school shall be heard."
COMPLAINTS
The applicants maintain that as they are members of the
associations running the schools in question, and as they are the
parents of children attending these schools, they are personally
affected in their right as parents to participate in their children's
education by the fact that the State refuses to grant subsidies.
They furthermore maintain that the lack of subsidies reduces, or
even eliminates, their rights in respect of their children's education
in a discriminatory manner contrary to Article 2 of Protocol No. 1 to
the Convention, read in conjunction with Article 14 of the Convention.
The applicants are of the opinion that there exists no reasonable
justification for subsidising religious private schools more favourably
than other private schools.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 23 December 1991 and registered
on 8 January 1992.
On 6 April 1994 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on
5 July 1994. The applicants replied on 24 August 1994.
THE LAW
The applicants complain, under Article 2 of Protocol No. 1
to the Convention, read in conjunction with Article 14 (P1-2+14) of the
Convention, of the availability of State subsidies for private schools
which, in their opinion, discriminates against non-religious
establishments.
Article 2 of Protocol No. 1 (P1-2) to the Convention reads as
follows:
"No person shall be denied the right to education. In the
exercise of any functions which it assumes in relation to
education and to teaching, the State shall respect the right of
parents to ensure such education and teaching in conformity with
their own religious and philosophical convictions."
Article 14 (Art. 14) of the Convention reads as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
The Government submit that the applicants may not claim to be
victims of the alleged violations of the Convention as the case
concerns the making of subsidies, and the recipient of the subsidies
was (or would have been) the body maintaining the school, not the
parents. The applicants submit that the position is different under
the Convention from domestic law, and that the decision not to grant
subsidies under Section 21 of the 1962 Act directly affected their
legal position as parents of children at recognised church schools.
The Commission notes that the applicants' application to the
Constitutional Court concerning the above was rejected by the Court due
to the fact that they were not personally affected in respect of
subsidy grants, as this was a matter between the State and the
associations in question.
The Commission recalls that under Article 25 (Art. 25) of the
Convention it may only examine complaints from a person,
non-governmental organisation or group of individuals if they can claim
to be victims of a violation by one of the High Contracting Parties of
the rights set forth in the Convention. However, the Commission finds
that it may leave open the question whether the applicants may claim
to be victims within the meaning of Article 25 (Art. 25) of the
Convention because, even assuming this to be the case, the application
is inadmissible for the following reasons.
In connection with Article 2 of Protocol No. 1 (P1-2) to the
Convention, the Government explain that the schools in which the
applicants were interested were not equivalent to State schools in that
they were not entitled to use certain types of names for their schools.
They point out that the provision requires the State to refrain from
religious or philosophical indoctrination, but does not go so far as
to require a particular type of education in State schools, nor does
it require the State to grant particular types of subsidies. They
underline that the applicants were able to, and did, set up schools,
and that the schools were recognised within the meaning of Section 14
of the 1962 Act. As to Article 14 (Art. 14) of the Convention, they
point to the differences between the schools attended by the
applicants' children on the one hand and State schools on the other,
and conclude that the two groups cannot be compared. They add that
church schools are exclusively "schools regulated by law" within the
meaning of Section 11 of the 1962 Act.
The applicants suggest that the Government, by concentrating on
the position of the schools attended by their children in relation to
State schools, have failed to answer the central issues raised by the
application, namely the difference in treatment between private schools
which are not church schools and those which are. They see no reason
to assume, without more, that all church schools are automatically
entitled to use the name of a particular type of school under
Section 11 of the 1962 Act. In any event they consider the point
irrelevant because the case turns on Sections 17 and 21 rather than
Section 11 of the 1962 Act.
The Commission recalls that Article 2 of Protocol No. 1
(P1-2) to the Convention guarantees the right to start and run a
private school (cf. Jordebo and others v. Sweden, No. 11533/85, Dec.
6.3.87, D.R. 51, p. 128 with further references).
The applicants were able to participate in schools which were set
up and run privately, and which respected their philosophical
convictions. Given that there is no positive obligation on the State
under Article 2 of Protocol No. 1 (P1-2) to subsidise any particular
form of education (No. 7782/77, Dec. 2.5.78, D.R. 14, p. 179, again
with further references), the Commission considers that the substantive
requirements of Article 2 of Protocol No. 1 (P1-2) have been met in the
present case.
However, "... a measure which in itself is in conformity with the
requirements of the article ensuring the right or freedom in question
may ... infringe this article when read in conjunction with Article 14
(Art. 14) for the reason that it is of a discriminatory nature" (Eur.
Court H.R., Belgian Linguistic Judgment of 23 July 1968, Series A no.
6, p. 33, referred to in No. 7782/82, referred to above). Accordingly,
although Article 2 of Protocol No. 1 (P1-2) does not give rise to an
obligation to subsidise any particular type of education, Article 14
(Art. 14) nevertheless requires that any subsidies which are made
should not be made in a discriminatory fashion.
Article 14 (Art. 14) prohibits treating differently, without any
objective and reasonable justification, persons in "relevantly" similar
situations (cf. Eur. Court H.R., Fredin judgment of 18 February 1991,
Series A no. 192, p. 19, para. 60).
The Commission has put questions to the respondent Government in
this connection, but finds, in agreement with the applicants, that the
observations by the Government - by concentrating on the question of
the applicants' status as victims - do not deal with this central
issue. The Commission has, however, examined the question in
connection with the application made by one of the associations to
which the present applicants belong (No. 23419/94, Verein Gemeinsam
Lernen v. Austria, decision of even date herewith). In that decision
the Commission concluded that the reasons for treating non-church
private schools differently from church schools were compatible with
Article 14 of the Convention, taken together with Article 2 of Protocol
No. 1 (Art. 14+P1-2). In particular, it noted that church schools meet
a need in the sense that if the educational facilities provided by the
church were not available, the State would be required to make
equivalent provision. Small private schools such as the schools in
which the applicants are interested, however, cater for the wishes of
those involved in them, and so do not meet such a need. The Commission
concluded that the difference in the way the two types of school can
receive subsidies was not discriminatory.
The Commission finds that those reasons - always assuming that
the present applicants may claim to be victims - apply mutatis mutandis
to any difference in treatment suffered by the applicants as a result
of the applicability of Section 21 of the 1962 Act to the schools to
which they sent their children, but not to church schools.
The examination of this complaint accordingly discloses no
appearance of a violation of Article 2 of Protocol No. 1 to the
Convention read in conjunction with Article 14 (P1-2+14) of the
Convention.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy